International Sale of Goods Act

Link to law: http://nslegislature.ca/legc/statutes/internls.htm
Published: 2016-01-05

International Sale of Goods Act

CHAPTER 13 OF THE ACTS OF 1988

An Act to Implement the
United Nations Convention on Contracts
for the International Sale of Goods

Short title
1 This Act may be cited as the International Sale of Goods Act. 1988,c. 13, s. 1.

"Convention defined"
2 In this Act, "Convention" means the United Nations Convention onContracts for the International Sale of Goods set out in the Schedule. 1988, c. 13, s. 2.

Extention to Province
3 The Attorney General shall request the Government of Canada todeclare in accordance with Article 93 of the Convention that theConvention extends to Nova Scotia. 1988, c. 13, s. 3.

Application in Province
4 On the date the Convention comes into force in Canada inaccordance with Article 99 of the Convention, the Convention applies inNova Scotia. 1988, c. 13, s. 4.

Publication
5 The Attorney General shall cause to be published in the RoyalGazette the date the Convention comes into force in Nova Scotia. 1988,c. 13, s. 5.

Regulations
6 The Governor in Council may make such regulations as arenecessary to carry out the intent and purpose of this Act. 1988, c. 13, s. 6.

Conflict
7 Where there is a conflict between this Act and any other enactment,this Acts prevails. 1988, c. 13, s. 7.

Contracting out
8 Unless parties to a contract to which the Convention wouldotherwise apply exclude its application by expressly providing in thecontract that the law, other than this Act, of Nova Scotia or anotherjurisdiction applies to it or that the Convention does not apply to thecontract, then the Convention applies to the contract. 1988, c. 13, s. 8.

Proclamation
9 This Act comes into force on and not before such day as theGovernor in Council orders and declares by proclamation. 1988, c. 13,s. 9.

Proclaimed - April 7, 1992
In force - May 1, 1992

SCHEDULE

UNITED NATIONS CONVENTION ON CONTRACTS FORTHE INTERNATIONAL SALE OF GOODS

THE STATES PARTIES TO THIS CONVENTION,

BEARING IN MIND the broad objectives in the resolutions adopted by the sixth specialsession of the General Assembly of the United Nations on the establishment of a NewInternational Economic Order,

CONSIDERING that the development of international trade on the basis of equality andmutual benefit is an important element in promoting friendly relations among States,

BEING OF THE OPINION that the adoption of uniform rules which govern contractsfor the international sale of goods and take into account the different social, economicand legal systems would contribute to the removal of legal barriers in international tradeand promote the development of international trade,

HAVE AGREED as follows:

PART I

SPHERE OF APPLICATIONAND GENERAL PROVISIONS

Chapter I

SPHERE OF APPLICATION

Article 1

(1) This Convention applies to contracts of sale of goods between parties whoseplaces of business are in different States:

(a) when the States are Contracting States; or

(b) when the rules of private international law lead to the application of thelaw of a Contracting State.

(2) The fact that the parties have their places of business in different States is to bedisregarded whenever this fact does not appear either from the contract or from anydealings between, or from information disclosed by, the parties at any time before or atthe conclusion of the contract.

(3) Neither the nationality of the parties nor the civil or commercial character of theparties or of the contract is to be taken into consideration in determining the applicationof this Convention.

Article 2

This Convention does not apply to sales:

(a) of goods bought for personal, family or household use, unless the seller,at any time before or at the conclusion of the contract, neither knew nor oughtto have known that the goods were bought for any such use;

(b) by auction;

(c) on execution or otherwise by authority of law;

(d) of stocks, shares, investment securities, negotiable instruments or money;

(e) of ships, vessels, hovercraft or aircraft;

(f) of electricity.

Article 3

(1) Contracts for the supply of goods to be manufactured or produced are to beconsidered sales unless the party who orders the goods undertakes to supply a substantialpart of the materials necessary for such manufacture or production.

(2) This Convention does not apply to contracts in which the preponderant part ofthe obligations of the party who furnished the goods consists in the supply of labour orother services.

Article 4

This Convention governs only the formation of the contract of sale and the rights andobligations of the seller and buyer arising from such a contract. In particular, exceptas otherwise expressly provided in this Convention, it is not concerned with:

(a) the validity of the contract or of any of its provisions or of any usage;

(b) the effect which the contract may have on the property in the goods sold.

Article 5

This Convention does not apply to the liability of the seller for death or personal injurycaused by the goods to any person.

Article 6

The parties may exclude the application of this Convention or, subject to article 12,derogate from or vary the effect of any of its provisions.

Chapter II

GENERAL PROVISIONS

Article 7

(1) In the interpretation of this Convention, regard is to be had to its internationalcharacter and to the need to promote uniformity in its application and the observance ofgood faith in international trade.

(2) Questions concerning matters governed by this Convention which are notexpressly settled in it are to be settled in conformity with the general principles on whichit is based or, in the absence of such principles, in conformity with the law applicableby virtue of the rules of private international law.

Article 8

(1) For the purpose of this Convention statements made by and other conduct of aparty are to be interpreted according to his intent where the other party knew or couldnot have been unaware what that intent was.

(2) If the preceding paragraph is not applicable, statements made by and otherconduct of a party are to be interpreted according to the understanding that a reasonableperson of the same kind as the other party would have had in the same circumstances.

(3) In determining the intent of a party or the understanding a reasonable personwould have had, due consideration is to be given to all relevant circumstances of thecase including the negotiations, any practices which the parties have established betweenthemselves, usages and any subsequent conduct of the parties.

Article 9

(1) The parties are bound by any usage to which they have agreed and by anypractices which they have established between themselves.

(2) The parties are considered, unless otherwise agreed, to have impliedly madeapplicable to their contract or its formation a usage of which the parties knew or oughtto have known and which in international trade is widely known to, and regularlyobserved by, parties to contracts of the type involved in the particular trade concerned.

Article 10

For the purposes of this Convention:

(a) if a party has more than one place of business, the place of business isthat which has the closest relationship to the contract and its performance, havingregard to the circumstances known to or contemplated by the parties at any timebefore or at the conclusion of the contract;

(b) if a party does not have a place of business, reference is to be made tohis habitual residence.

Article 11

A contract of sale need not be concluded in or evidenced by writing and is not subjectto any other requirement as to form. It may be proved by any means, includingwitnesses.

Article 12

Any provision of article 11, article 29 or Part II of this Convention that allows a contractof sale or its modification or termination by agreement or any offer, acceptance or otherindication of intention to be made in any form other than in writing does not apply whereany party has his place of business in a Contracting State which has made a declarationunder article 96 of this Convention. The parties may not derogate from or vary theeffect of this article.

Article 13

For the purposes of this Convention "writing" includes telegram and telex.

PART II

FORMATION OF THE CONTRACT

Article 14

(1) A proposal for concluding a contract addressed to one or more specific personsconstitutes an offer if it is sufficiently definite and indicates the intention of the offerorto be bound in case of acceptance. A proposal is sufficiently definite if it indicates thegoods and expressly or implicitly fixes or makes provision for determining the quantityand the price.

(2) A proposal other than one addressed to one or more specific persons is to beconsidered merely as an invitation to make offers, unless the contrary is clearly indicatedby the person making the proposal.

Article 15

(1) An offer becomes effective when it reaches the offeree.

(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reachesthe offeree before or at the same time as the offer.

Article 16

(1) Until a contract is concluded an offer may be revoked if the revocation reachesthe offeree before he has dispatched an acceptance.

(2) However, an offer cannot be revoked:

(a) if it indicates, whether by stating a fixed time for acceptance orotherwise, that it is irrevocable; or

(b) if it was reasonable for the offeree to rely on the offer as beingirrevocable and the offeree has acted in reliance on the offer.

Article 17

An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.

Article 18

(1) A statement made by or other conduct of the offeree indicating assent to an offeris an acceptance. Silence or inactivity does not in itself amount to acceptance.

(2) An acceptance of an offer becomes effective at the moment the indication ofassent reaches the offeror. An acceptance is not effective if the indication of assent doesnot reach the offeror within the time he has fixed, or, if no time is fixed, within areasonable time, due account being taken of the circumstances of the transaction,including the rapidity of the means of communication employed by the offeror. An oraloffer must be accepted immediately unless the circumstances indicate otherwise.

(3) However, if by virtue of the offer as a result of practices which the parties haveestablished between themselves or of usage, the offeree may indicate assent byperforming an act, such as one relating to the dispatch of the goods or payment of theprice, without notice to the offeror, the acceptance is effective at the moment the act isperformed, provided that the act is performed within the period of time laid down in thepreceding paragraph.

Article 19

(1) A reply to an offer which purports to be an acceptance but contains additions,limitations or other modifications is a rejection of the offer and constitutes a counter-offer.

(2) However, a reply to an offer which purports to be an acceptance but containsadditional or different terms which do not materially alter the terms of the offerconstitutes an acceptance, unless the offeror, without undue delay, objects orally to thediscrepancy or dispatches a notice to that effect. If he does not so object, the terms ofthe contract are the terms of the offer with the modifications contained in theacceptance.

(3) Additional or different terms relating, among other things, to the price, payment,quality and quantity of the goods, place and time of delivery, extent of one partysliability to the other or the settlement of disputes are considered to alter the terms of theoffer materially.

Article 20

(1) A period of time for acceptance fixed by the offeror in a telegram or a letterbegins to run from the moment the telegram is handed in for dispatch or from the dateshown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other meansof instantaneous communication, begins to run from the moment that the offer reachesthe offeree.

(2) Official holidays or non-business days occurring during the period for acceptanceare included in calculating the period. However, if a notice of acceptance cannot bedelivered at the address of the offeror on the last day of the period because that day fallson an official holiday or a non-business day at the place of business of the offeror, theperiod is extended until the first business day which follows.

Article 21

(1) A late acceptance is nevertheless effective as an acceptance if without delay theofferor orally so informs the offeree or dispatches a notice to that effect.

(2) If a letter or other writing containing a late acceptance shows that it has been sentin such circumstances that if its transmission had been normal it would have reached theofferor in due time, the late acceptance is effective as an acceptance unless, withoutdelay, the offeror orally informs the offeree that he considers his offer as having lapsedor dispatches a notice to that effect.

Article 22

An acceptance may be withdrawn if the withdrawal reaches the offeror before or at thesame time as the acceptance would have become effective.

Article 23

A contract is concluded at the moment when an acceptance of an offer becomes effectivein accordance with the provisions of this Convention.

Article 24

For the purposes of this Part of the Convention, an offer, declaration of acceptance orany other indication of intention "reaches" the addressee when it is made orally to himor delivered by any other means to him personally, to his place of business or mailingaddress or, if he does not have a place of business or mailing address, to his habitualresidence.

PART III

SALE OF GOODS

Chapter I

GENERAL PROVISIONS

Article 25

A breach of contract committed by one of the parties is fundamental if it results in suchdetriment to the other party as substantially to deprive him of what he is entitled toexpect under the contract, unless the party in breach did not foresee and a reasonableperson of the same kind in the same circumstances would not have foreseen such aresult.

Article 26

A declaration of avoidance of the contract is effective only if made by notice to the otherparty.

Article 27

Unless otherwise expressly provided in this Part of the Convention, if any notice,request or other communication is given or made by a party in accordance with this Partand by means appropriate in the circumstances, a delay or error in the transmission ofthe communication or its failure to arrive does not deprive that party of the right to relyon the communication.

Article 28

If, in accordance with the provisions of this Convention, one party is entitled to requireperformance of any obligation by the other party, a court is not bound to enter ajudgement for specific performance unless the court would do so under its own law inrespect of similar contracts of sale not governed by this Convention.

Article 29

(1) A contract may be modified or terminated by the mere agreement of the parties.

(2) A contract in writing which contains a provision requiring any modification ortermination by agreement to be in writing may not be otherwise modified or terminatedby agreement. However, a party may be precluded by his conduct from asserting sucha provision to the extent that the other party has relied on that conduct.

Chapter II

OBLIGATIONS OF THE SELLER

Article 30

The seller must deliver the goods, hand over any documents relating to them andtransfer the property in the goods, as required by the contract and this Convention.

Section I

Delivery of the goods and handing over the docouments

Article 31

If the seller is not bound to deliver the goods at any other particular place, his obligationto deliver consists:

(a) if the contract of sale involves carriage of the goods -- in handing thegoods over to the first carrier for transmission to the buyer;

(b) if, in cases not within the preceding subparagraph, the contract relates tospecific goods, or unidentified goods to be drawn from a specific stock or to bemanufactured or produced, and at the time of the conclusion of the contract theparties knew that the goods were at, or were to be manufactured or produced at,a particular place -- in placing the goods at the buyers disposal at that place;

(c) in other cases -- in placing the goods at the buyers disposal at the placewhere the seller had his place of business at the time of the conclusion of thecontract.

Article 32

(1) If the seller, in accordance with the contract or this Convention, hands the goodsover to a carrier and if the goods are not clearly identified to the contract by markingson the goods, by shipping documents or otherwise, the seller must give the buyer noticeof the consignment specifying the goods.

(2) If the seller is bound to arrange for carriage of the goods, he must make suchcontracts as are necessary for carriage to the place fixed by means of transportationappropriate in the circumstances and according to the usual terms for suchtransportation.

(3) If the seller is not bound to effect insurance in respect of the carriage of thegoods, he must, at the buyers request, provide him with all available informationnecessary to enable him to effect such insurance.

Article 33

The seller must deliver the goods:

(a) if a date is fixed by or determinable from the contract, on that date;

(b) if a period of time is fixed by or determinable from the contract, at anytime within that period unless circumstances indicate that the buyer is to choosea date; or

(c) in any other case, within a reasonable time after the conclusion of thecontract.

Article 34

If the seller is bound to hand over documents relating to the goods, he must hand themover at the time and place and in the form required by the contract. If the seller hashanded over the documents before that time, he may, up to that time, cure any lack ofconformity in the documents, if the exercise of this right does not cause the buyerunreasonable inconvenience or unreasonable expense. However, the buyer retains anyright to claim damages as provided for in this Convention.

Section II

Conformity of the goods and third party claims

Article 35

(1) The seller must deliver goods which are of the quantity, quality and descriptionrequired by the contract and which are contained or packaged in the manner required bythe contract.

(2) Except where the parties have agreed otherwise, the goods do not conform withthe contract unless they:

(a) are fit for the purpose for which goods of the same description wouldordinarily be used;

(b) are fit for any particular purpose expressly or impliedly made known tothe seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him toreply, on the sellers skill and judgment;

(c) possess the qualities of goods which the seller has held out to the buyeras a sample or model;

(d) are contained or packaged in the manner usual for such goods or, wherethere is no such manner, in a manner adequate to preserve and protect the goods.

(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraphfor any lack of conformity of the goods if at the time of the conclusion of the contractthe buyer knew or could not have been unaware of such lack of conformity.

Article 36

(1) The seller is liable in accordance with the contract and this Convention for anylack of conformity which exists at the time when the risk passess to the buyer, eventhough the lack of conformity becomes apparent only after that time.

(2) The seller is also liable for any lack of conformity which occurs after the timeindicated in the preceding paragraph and which is due to a breach of any of hisobligations, including a breach of any guarantee that for a period of time the goods willremain fit for their ordinary purpose or for some particular purpose or will retainspecified qualities or characteristics.

Article 37

If the seller has delivered goods before the date for delivery, he may, up to that date,deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered orremedy any lack of conformity in the goods delivered, provided that the exercise of thisright does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in thisConvention.

Article 38

(1) The buyer must examine the goods, or cause them to be examined, within asshort a period as is practicable in the circumstances.

(2) If the contract involves carriage of the goods, examination may be deferred untilafter the goods have arrived at their destination.

(3) If the goods are redirected in transit or redispatched by the buyer without areasonable opportunity for examination by him and at the time of the conclusion of thecontract the seller knew or ought to have known of the possibility of such redirection orredispatch, examination may be deferred until after the goods have arrived at the newdestination.

Article 39

(1) The buyer loses the right to rely on a lack of conformity of the goods if he doesnot give notice to the seller specifying the nature of the lack of conformity within areasonable time after he has discovered it or ought to have discovered it.

(2) In any event, the buyer loses the right to rely on a lack of conformity of thegoods if he does not give the seller notice thereof at the latest within a period of twoyears from the date on which the goods were actually handed over to the buyer, unlessthis time-limit is inconsistent with a contractual period of guarantee.

Article 40

The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack ofconformity relates to facts of which he knew or could not have been unaware and whichhe did not disclose to the buyer.

Article 41

The seller must deliver goods which are free from any right or claim of a third party,unless the buyer agreed to take the goods subject to that right or claim. However, ifsuch right or claim is based on industrial property or other intellectual property, thesellers obligations is governed by article 42.

Article 42

(1) The seller must deliver goods which are free from any right or claim of a thirdparty based on industrial property or other intellectual property, of which at the time ofthe conclusion of the contract the seller knew or could not have been unaware, providedthat the right or claim is based on industrial property or other intellectual property:

(a) under the law of the State where the goods will be resold or otherwiseused, if it was contemplated by the parties at the time of conclusion of thecontract that the goods would be resold or otherwise used in that State; or

(b) in any other case, under the law of the State where the buyer has hisplace of business.

(2) The obligation of the seller under the preceding paragraph does not extend tocases where:

(a) at the time of the conclusion of the contract the buyer knew or could nothave been unaware of the right or claim; or

(b) the right or claim results from the sellers compliance with technicaldrawings, designs formulae or other such specifications furnished by the buyer.

Article 43

(1) The buyer loses the right to rely on the provisions of article 41 or article 42 ifhe does not give notice to the seller specifying the nature of the right or claim of thethird party within a reasonable time after he has become aware or ought to have becomeaware of the right or claim.

(2) The seller is not entitled to rely on the provisions of the preceding paragraph ifhe knew of the right or claim of the third party and the nature of it.

Article 44

Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article43, the buyer may reduce the price in accordance with article 50 or claim damages,except for loss of profit, if he has a reasonable excuse for his failure to give the requirednotice.

Section III

Remedies for breach of contract by the seller

Article 45

(1) If the seller fails to perform any of his obligations under the contract or thisConvention, the buyer may:

(a) exercise the rights provided in articles 46 to 52;

(b) claim damages as provided in articles 74 to 77.

(2) The buyer is not deprived of any right he may have to claim damages byexercising his right to other remedies.

(3) No period of grace may be granted to the seller by a court or arbitral tribunalwhen the buyer resorts to a remedy for breach of contract.

Article 46

(1) The buyer may require performance by the seller of his obligations unless thebuyer has resorted to a remedy which is inconsistent with this requirement.

(2) If the goods do not conform with the contract, the buyer may require deliveryof substitute goods only if the lack of conformity constitutes a fundamental breach ofcontract and a request for substitute goods is made either in conjunction with noticegiven under article 39 or within a reasonable time thereafter.

(3) If the goods do not conform with the contract, the buyer may require the sellerto remedy the lack of conformity by repair, unless this is unreasonable having regard toall the circumstances. A request for repair must be made either in conjunction withnotice given under article 39 or within a reasonable time thereafter.

Article 47

(1) The buyer may fix an additional period of time of reasonable length forperformance by the seller of his obligations.

(2) Unless the buyer has received notice from the seller that he will not performwithin the period so fixed, the buyer may not, during that period, resort to any remedyfor breach of contract. However, the buyer is not deprived thereby of any right he mayhave to claim damages for delay in performance.

Article 48

(1) Subject to article 49, the seller may, even after the date for delivery, remedy athis own expense any failure to perform his obligations, if he can do so withoutunreasonable delay and without causing the buyer unreasonable inconvenience oruncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim damages as provided for in thisConvention.

(2) If the seller requests the buyer to make known whether he will acceptperformance and the buyer does not comply with the request within a reasonable time,the seller may perform within the time indicated in his request. The buyer may not,during that period of time, resort to any remedy which is inconsistent with performanceby the seller.

(3) A notice by the seller that he will perform within a specified period of time isassumed to include a request, under the preceding paragraph, that the buyer make knownhis decision.

(4) A request or notice by the seller under paragraph (2) or (3) of this article is noteffective unless received by the buyer.

Article 49

(1) The buyer may declare the contract avoided:

(a) if the failure by the seller to perform any of his obligations under thecontract or this Convention amounts to a fundamental breach of contract; or

(b) in case of non-delivery, if the seller does not deliver the goods within theadditional period of time fixed by the buyer in accordance with paragraph (1) ofarticle 47 or declares that he will not deliver within the period so fixed.

(2) However, in cases where the seller has delivered the goods, the buyer loses theright to declare the contract avoided unless he does so:

(a) in respect of late delivery, within a reasonable time after he has becomeaware that delivery has been made;

(b) in respect of any breach other than late delivery, within a reasonabletime:

(i) after he knew or ought to have known of the breach;
(ii) after the expiration of any additional period of time fixed by the buyer inaccordance with paragraph (1) of article 47, or after the seller has declared thathe will not perform his obligations within such an additional period; or

(iii) after the expiration of any additional period of time indicated by the sellerin accordance with paragraph (2) of article 48, or after the buyer has declaredthat he will not accept performance.

Article 50

If the goods do not conform with the contract and whether or not the price has alreadybeen paid, the buyer may reduce the price in the same proportion as the value that thegoods actually delivered had at the time of the delivery bears to the value thatconforming goods would have had at that time. However, if the seller remedies anyfailure to perform his obligations in accordance with article 37 or article 48 or if thebuyer refuses to accept performance by the seller in accordance with those articles, thebuyer may not reduce the price.

Article 51

(1) If the seller delivers only a part of the goods or if only a part of the goodsdelivered is in conformity with the contract, articles 46 to 50 apply in respect of the partwhich is missing or which does not conform.

(2) The buyer may declare the contract avoided in its entirety only if the failure tomake delivery completely or on conformity with the contract amounts to a fundamentalbreach of the contract.

Article 52

(1) If the seller delivers the goods before the date fixed, the buyer may take deliveryor refuse to take delivery.

(2) If the seller delivers a quantity of goods greater than that provided for in thecontract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at thecontract rate.

Chapter III

OBLIGATIONS OF THE BUYER

Article 53

The buyer must pay the price for the goods and take delivery of them as required by thecontract and this Convention.

Section I

Payment of the price

Article 54

The buyers obligation to pay the price includes taking such steps and complying withsuch formalities as may be required under the contract or any laws and regulations toenable payment to be made.

Article 55

Where a contract has been validly concluded but does not expressly or implicitly fix ormake provision for determining the price, the parties are considered, in the absence ofany indication to the contrary, to have impliedly made reference to the price generallycharged at the time of the conclusion of the contract for such goods sold undercomparable circumstances in the trade concerned.

Article 56

If the price is fixed according to the weight of the goods, in case of doubt it is to bedetermined by net weight.

Article 57

(1) If the buyer is not bound to pay the price at any other particular place, he mustpay it to the seller:

(a) at the sellers place of business; or

(b) if the payment is to be made against the handing over of the goods or ofdocuments, at the place where the handing over takes place.

(2) The seller must bear any increase in the expenses incidental to payment whichis caused by a change in his place of business subsequent to the conclusion of the contract.

Article 58

(1) If the buyer is not bound to pay the price at any other specific time, he must payit when the seller places either the goods or documents controlling their disposition atthe buyers disposal in accordance with the contract and this Convention. The sellermay make such payment a condition for handing over the goods or documents.

(2) If the contract involves carriage of the goods, the seller may dispatch the goodson terms whereby the goods, or documents controlling their disposition, will not behanded over to the buyer except against payment of the price.

(3) The buyer is not bound to pay the price until he has had an opportunity toexamine the goods, unless the procedures for delivery or payment agreed upon by theparties are inconsistent with his having such an opportunity.

Article 59

The buyer must pay the price on the date fixed by or determinable from the contract andthis Convention without the need for any request or compliance with any formality onthe part of the seller.

Section II

Taking delivery

Article 60

The buyers obligation to take delivery consists:

(a) in doing all the acts which could reasonably be expected of him in orderto enable the seller to make delivery; and

(b) in taking over the goods.

Section III

Remedies for breach of contract by the buyer

Article 61

(1) If the buyer fails to perform any of his obligations under the contract or thisConvention, the seller may:

(a) exercise the rights provided in articles 62 to 65;

(b) claim damages as provided in articles 74 to 77.

(2) The seller is not deprived of any right he may have to claim damages byexercising his right to other remedies.

(3) No period of grace may be granted to the buyer by a court or arbitral tribunalwhen the seller resorts to a remedy for breach of contract.

Article 62

The seller may require the buyer to pay the price, take delivery or perform his otherobligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.

Article 63

(1) The seller may fix an additional period of time of reasonable length forperformance by the buyer of his obligations.

(2) Unless the seller has received notice from the buyer that he will not performwithin the period so fixed, the seller may not, during that period, resort to any remedyfor breach of contract. However, the seller is not deprived thereby of any right he mayhave to claim damages for delay in performance.

Article 64

(1) The seller may declare the contract avoided:

(a) if the failure by the buyer to perform any of his obligations under thecontract or this Convention amounts to a fundamental breach of contract; or

(b) if the buyer does not, within the additional period of time fixed by theseller in accordance with paragraph (1) of article 63, perform his obligation topay the price or take delivery of the goods, or if he declares that he will not doso within the period so fixed.

(2) However, in cases where the buyer has paid the price, the seller loses the rightto declare the contract avoided unless he does so:

(a) in respect of late performance by the buyer, before the seller has becomeaware that performance has been rendered; or

(b) in respect of any breach other than late performance by the buyer, withina reasonable time:

(i) after the seller knew or ought to have known of the breach; or
(ii) after the expiration of any additional period of time fixed by the seller inaccordance with paragraph (1) of article 63, or after the buyer has declared thathe will not perform his obligations within such an additional period.

Article 65

(1) If under the contract the buyer is to specify the form, measurement or otherfeatures of the goods and he fails to make such specification either on the date agreedupon or within a reasonable time after receipt of a request from the seller, the sellermay, without prejudice to any other rights he may have, make the specification himselfin accordance with the requirements of the buyer that may be known to him.

(2) If the seller makes the specification himself, he must inform the buyer of thedetails thereof and must fix a reasonable time within which the buyer may make a different specification. If, after receipt of such a communication, the buyer fails to do sowithin the time so fixed, the specification made by the seller is binding.

Chapter IV

PASSING OF RISK

Article 66

Loss of or damage to the goods after the risk has passed to the buyer does not dischargehim from his obligation to pay the price, unless the loss or damage is due to an act oromission of the seller.

Article 67

(1) If the contract of sale involved carriage of the goods and the seller is not boundto hand them over at a particular place, the risk passes to the buyer when the goods arehanded over to the first carrier for transmission to the buyer in accordance with thecontract of sale. If the seller is bound to hand the goods over to a carrier at a particularplace, the risk does not pass to the buyer until the goods are handed over to the carrierat that place. The fact that the seller is authorized to retain documents controlling thedisposition of the goods does not affect the passage of the risk.

(2) Nevertheless, the risk does not pass to the buyer until the goods are clearlyidentified to the contract, whether by markings on the goods, by shipping documents,by notice given to the buyer or otherwise.

Article 68

The risk in respect of goods sold in transit passes to the buyer from the time of theconclusion of the contract. However, if the circumstances so indicate, the risk isassumed by the buyer from the time the goods were handed over to the carrier whoissued the documents embodying the contract of carriage. Nevertheless, if at the timeof the conclusion of the contract of sale the seller knew or ought to have known that thegoods had been lost or damaged and did not disclose this to the buyer, the loss ordamage is at the risk of the seller.

Article 69

(1) In cases not within articles 67 and 68, the risk passes to the buyer when he takesover the goods or, if he does not do so in due time, from the time when the goods areplaced at his disposal and he commits a breach of contract by failing to take delivery.

(2) However, if the buyer is bound to take over the goods at a place other than aplace of business of the seller, the risk passes when delivery is due and the buyer isaware of the fact that the goods are placed at his disposal at that place.

(3) If the contract relates to goods not then identified, the goods are considered notto be placed at the disposal of the buyer until they are clearly identified to the contract.

Article 70

If the seller has committed a fundamental breach of contract, articles 67, 68 and 69 donot impair the remedies available to the buyer on account of the breach.

Chapter V

PROVISIONS COMMON TO THE OBLIGATIONSOF THE SELLER AND OF THE BUYER

Section 1

Anticipatory breach and instalment contracts

Article 71

(1) A party may suspend the performance of his obligations if, after the conclusionof the contract, it becomes apparent that the other party will not perform a substantialpart of his obligations as a result of:

(a) a serious deficiency in his ability to perform or in his creditworthiness;or

(b) his conduct in preparing to perform or in performing the contract.

(2) If the seller has already dispatched the goods before the grounds described in thepreceding paragraph become evident, he may prevent the handing over of the goods tothe buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer andthe seller.

(3) A party suspending performance, whether before or after dispatch of the goods,must immediately give notice of the suspension to the other party and must continue withperformance if the other party provides adequate assurance of his performance.

Article 72

(1) If prior to the date for performance of the contract it is clear that one of theparties will commit a fundamental breach of contract, the other party may declare thecontract avoided.

(2) If time allows, the party intending to declare the contract avoided must givereasonable notice to the other party in order to permit him to provide adequate assuranceof his performance.

(3) The requirements of the preceding paragraph do not apply if the other party hasdeclared that he will not perform his obligations.

Article 73

(1) In the case of a contract for delivery of goods by instalments, if the failure of oneparty to perform any of his obligations in respect of any instalment constitutes afundamental breach of contract with respect to that instalment, the other party maydeclare the contract avoided with respect to that instalment.

(2) If one partys failure to perform any of his obligations in respect of anyinstalment gives the other party good grounds to conclude that a fundamental breach ofcontract will occur with respect to future instalments, he may declare the contractavoided for the future, provided that he does so within a reasonable time.

(3) A buyer who declares the contract avoided in respect of any delivery may, at thesame time, declare it avoided in respect of deliveries already made or of futuredeliveries if, by reason of their interdependence, those deliveries could not be used forthe purpose contemplated by the parties at the time of the conclusion of the contract.

Section II

Damages

Article 74

Damages for breach of contract by one party consist of a sum equal to the loss,including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought tohave foreseen at the time of the conclusion of the contract, in the light of the facts andmatters of which he then knew or ought to have known, as a possible consequence of thebreach of contract.

Article 75

If the contract is avoided and if, in a reasonable manner and within a reasonable timeafter avoidance, the buyer has bought goods in replacement or the seller has resold thegoods, the party claiming damages may recover the difference between the contractprice and the price in the substitute transaction as well as any further damagesrecoverable under article 74.

Article 76

(1) If the contract is avoided and there is a current price for the goods, the partyclaiming damages may, if he has not made a purchase or resale under article 75, recoverthe difference between the price fixed by the contract and the current price at the timeof avoidance as well as any further damages recoverable under article 74. If, however,the party claiming damages has avoided the contract after taking over the goods, thecurrent price at the time of such taking over shall be applied instead of the current priceat the time of avoidance.

(2) For the purposes of the preceding paragraph, the current price is the priceprevailing at the place where delivery of the goods should have been made or, if thereis no current price at that place, the price at such other place as serves as a reasonablesubstitute, making due allowance for differences in the cost of transporting the goods.

Article 77

A party who relies on a breach of contract must take such measures as are reasonablein the circumstances to mitigate the loss, including loss of profit, resulting from thebreach. If he fails to take such measures, the party in breach may claim a reduction inthe damages in the amount by which the loss should have been mitigated.

Section III

Interest

Article 78

If a party fails to pay the price or any other sum that is in arrears, the other party isentitled to interest on it, without prejudice to any claim for damages recoverable underarticle 74.

Section IV

Exemptions

Article 79

(1) A party is not liable for a failure to perform any of his obligations if he provesthat the failure was due to an impediment beyond his control and that he could notreasonably be expected to have taken the impediment into account at the time of theconclusion of the contract or to have avoided or overcome it or its consequences.

(2) If the partys failure is due to the failure by a third person whom he has engagedto perform the whole or a part of the contract, that party is exempt from liability onlyif:

(a) he is exempt under the preceding paragraph; and

(b) the person whom he has so engaged would be so exempt if the provisionsof that paragraph were applied to him.

(3) The exemption provided by this article has effect for the period during which theimpediment exists.

(4) The party who fails to perform must give notice to the other party of theimpediment and its effect on his ability to perform. If the notice is not received by theother party within a reasonable time after the party who fails to perform knew or oughtto have known of the impediment, he is liable for damages resulting from such non-receipt.

(5) Nothing in this article prevents either party from exercising any right other thanto claim damages under this Convention.

Article 80

A party may not rely on a failure of the other party to perform, to the extent that suchfailure was caused by the first partys act or omission.

Section V

Effects of avoidance

Article 81

(1) Avoidance of the contract releases both parties from their obligations under it,subject to any damages which may be due. Avoidance does not affect any provision ofthe contract for the settlement of disputes or any other provision of the contractgoverning the rights and obligations of the parties consequent upon the avoidance of thecontract.

(2) A party who has performed the contract either wholly or in part may claimrestitution from the other party of whatever the first party has supplied or paid under thecontract. If both parties are bound to make restitution, they must do so concurrently.

Article 82

(1) The buyer loses the right to declare the contract avoided or to require the sellerto deliver substitute goods if it is impossible for him to make restitution of the goodssubstantially in the condition in which he received them.

(2) The preceding paragraph does not apply:

(a) if the impossibility of making restitution of the goods or of makingrestitution of the goods substantially in the condition in which the buyer receivedthem is not due to his act or omission;

(b) if the goods or part of the goods have perished or deteriorated as a resultof the examination provided for in article 38; or

(c) if the goods or part of the goods have been sold in the normal course ofbusiness or have been consumed or transformed by the buyer in the course ofnormal use before he discovered or ought to have discovered the lack ofconformity.

Article 83

A buyer who has lost the right to declare the contract avoided or to require the seller todeliver substitute goods in accordance with article 82 retains all other remedies underthe contract and this Convention.

Article 84

(1) If the seller is bound to refund the price, he must also pay interest on it, from thedate on which the price was paid.

(2) The buyer must account to the seller for all benefits which he has derived fromthe goods or part of them:

(a) if he must make restitution of the goods or part of them; or

(b) if it is impossible for him to make restitution of all or part of the goodsor to make restitution of all or part of the goods substantially in the condition inwhich he received them, but he had nevertheless declared the contract avoidedor required the seller to deliver substitute goods.

Section VI

Preservation of the goods

Article 85

If the buyer is in delay in taking delivery of the goods or, where payment of the priceand delivery of the goods are to be made concurrently, if he fails to pay the price, andthe seller is either in possession of the goods or otherwise able to control theirdisposition, the seller must take such steps as are reasonable in the circumstances topreserve them. He is entitled to retain them until he has been reimbursed his reasonableexpenses by the buyer.

Article 86

(1) If the buyer has received the goods and intends to exercise any right under thecontract or this Convention to reject them, he must take such steps to preserve them asare reasonable in the circumstances. He is entitled to retain them until he has beenreimbursed his reasonable expenses by the seller.

(2) If goods dispatched to the buyer have been placed at his disposal at theirdestination and he exercises the right to reject them, he must take possession of them onbehalf of the seller, provided that this can be done without payment of the price andwithout unreasonable inconvenience or unreasonable expense. This provision does notapply if the seller or a person authorized to take charge of the goods on his behalf ispresent at the destination. If the buyer takes possession of the goods under thisparagraph, his rights and obligations are governed by the preceding paragraph.

Article 87

A party who is bound to take steps to preserve the goods may deposit them in awarehouse of a third person at the expense of the other party provided that the expenseincurred is not unreasonable.

Article 88

(1) A party who is bound to preserve the goods in accordance with article 85 or 86may sell them by any appropriate means if there has been an unreasonable delay by theother party in taking possession of the goods or in taking them back or in paying theprice or the cost of preservation, provided that reasonable notice of the intention to sellhas been given to the other party.

(2) If the goods are subject to rapid deterioration or their preservation would involveunreasonable expense, a party who is bound to preserve the goods in accordance witharticle 85 or 86 must take reasonable measures to sell them. To the extent possible hemust give notice to the other party of his intention to sell.

(3) A party selling the goods has the right to retain out of the proceeds of sale anamount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance.

PART IV

FINAL PROVISIONS

Article 89

The Secretary-General of the United Nations is hereby designated as the depositary forthis Convention.

Article 90

This Convention does not prevail over any international agreement which has alreadybeen or may be entered into and which contains provisions concerning the mattersgoverned by this Convention, provided that the parties have their places of business inStates parties to such agreement.

Article 91

(1) This Convention is open for signature at the concluding meeting of the UnitedNations Conference on Contracts for the International Sale of Goods and will remainopen for signature by all States at the Headquarters of the United Nations, New Yorkuntil 30 September 1981.

(2) This Convention is subject to ratification, acceptance or approval by the signatoryStates.

(3) This Convention is open for accession by all States which are not signatory Statesas from the date it is open for signature.

(4) Instruments of ratification, acceptance, approval and accession are to bedeposited with the Secretary-General of the United Nations.

Article 92

(1) A Contracting State may declare at the time of signature, ratification, acceptance,approval or accession that it will not be bound by Part II of this Convention or that itwill not be bound by Part III of this Convention.

(2) A Contracting State which makes a declaration in accordance with the precedingparagraph in respect of Part II or Part III of this Convention is not to be considered aContracting State within paragraph (1) of article 1 of this Convention in respect ofmatters governed by the Part to which the declaration applies.

Article 93

(1) If a Contracting State has two or more territorial units in which, according to itsconstitution, different systems of law are applicable in relation to the matters dealt within this Convention, it may, at the time of signature, ratification, acceptance, approvalor accession, declare that this Convention is to extend to all its territorial units or onlyto one or more of them, and may amend its declaration by submitting anotherdeclaration at any time.

(2) These declarations are to be notified to the depositary and are to state expresslythe territorial units to which the Convention extends.

(3) If, by virtue of a declaration under this article, this Convention extends to oneor more but not all of the territorial units of a Contracting State, and if the place ofbusiness of a party is located in that State, this place of business, for the purposes of thisConvention, is considered not to be in a Contracting State, unless it is in a territorial unitto which the Convention extends.

(4) If a Contracting State makes no declaration under paragraph (1) of this article,the Convention is to extend to all territorial units of that State.

Article 94

(1) Two or more Contracting States which have the same or closely related legalrules on matters governed by this Convention may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties havetheir places of business in those States. Such declarations may be made jointly or byreciprocal unilateral declarations.

(2) A Contracting State which has the same or closely related legal rules on mattersgoverned by this Convention as one or more non-Contracting States may at any timedeclare that the Convention is not to apply to contracts of sale or to their formationwhere the parties have their places of business in those States.

(3) If a State which is the object of a declaration under the preceding paragraphsubsequently becomes a Contracting State, the declaration made will, as from the dateon which the Convention enters into force in respect of the new Contracting State, havethe effect of a declaration made under paragraph (1), provided that the new ContractingState joins in such declaration or makes a reciprocal unilateral declaration.

Article 95

Any State may declare at the time of the deposit of its instrument of ratification,acceptance, approval or accession that it will not be bound by subparagraph (1)(b) ofarticle 1 of this Convention.

Article 96

A Contracting State whose legislation requires contracts of sale to be concluded in orevidenced by writing may at any time make a declaration in accordance with article 12that any provision of article 11, article 29, or Part II of this Convention, that allows acontract of sale or its modification or termination by agreement or any offer, acceptance,or other indication of intention to be made in any form other than in writing, does notapply where any party has his place of business in that State.

Article 97

(1) Declarations made under this Convention at the time of signature are subject toconfirmation upon ratification, acceptance or approval.

(2) Declarations and confirmations of declarations are to be in writing and beformally notified to the depositary.

(3) A declaration takes effect simultaneously with the entry into force of thisConvention in respect of the State concerned. However, a declaration of which thedepositary receives formal notification after such entry into force takes effect on the firstday of the month following the expiration of six months after the date of its receipt bythe depositary. Reciprocal unilateral declarations under article 94 take effect on the firstday of the month following the expiration of six months after the receipt of the latestdeclaration by the depositary.

(4) Any state which makes a declaration under this Convention may withdraw it atany time by a formal notification in writing addressed to the depositary. Suchwithdrawal is to take effect on the first day of the month following the expiration of sixmonths after the date of the receipt of the notification by the depositary.

(5) A withdrawal of a declaration made under article 94 renders inoperative, as fromthe date on which the withdrawal takes effect, any reciprocal declaration made byanother State under that article.

Article 98

No reservations are permitted except those expressly authorized by this Convention.

Article 99

(1) This Convention enters into force, subject to the provisions of paragraph (6) ofthis article, on the first day of the month following the expiration of twelve months afterthe date of deposit of the tenth instrument of ratification, acceptance, approval oraccession, including an instrument which contains a declaration made under article 92.

(2) When a State ratifies, accepts, approves or accedes to this Convention after thedeposit of the tenth instrument of ratification, acceptance, approval or accession, thisConvention, with the exception of the Part excluded, enters into force in respect of thatState, subject to the provisions of paragraph (6) of this article, on the first day of themonth following the expiration of twelve months after the date of the deposit of itsinstrument of ratification, acceptance, approval or accession.

(3) A State which ratifies, accepts, approves or accedes to this Convention and is aparty to either or both the Convention relating to a Uniform Law on the Formation ofContracts for the International Sale of Goods done at The Hague on 1 July 1964 (1964Hague Formation Convention) and the Convention relating to a Uniform Law on theInternational Sale of Goods done at The Hague on 1 July 1964 (1964 Hague SaleConvention) shall at the same time denounce, as the case may be, either or both the1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifyingthe Government of the Netherlands to that effect.

(4) A State party to the 1964 Hague Sales Convention which ratifies, accepts,approves or accedes to the present Convention and declares or has declared under article92 that it will not be bound by Part II of this Convention shall at the time of ratification,acceptance, approval or accession denounce the 1964 Hague Sales Convention bynotifying the Government of the Netherlands to that effect.

(5) A State party to the 1964 Hague Formation Convention which ratifies, accepts,approves or accedes to the present Convention and declares or has declared under article92 that it will not be bound by Part III of this Convention shall at the time of ratification,acceptance, approval or accession denounce the 1964 Hague Formation Convention bynotifying the Government of the Netherlands to that effect.

(6) For the purpose of this article, ratifications, acceptances, approvals or accessionsin respect of this Convention by States parties to the 1964 Hague Formation Conventionor to the 1964 Hague Sales Convention shall not be effective until such denunciationsas may be required on the part of those States in respect of the latter two Conventionshave themselves become effective. The depositary of this Convention shall consult withthe Government of the Netherlands, as the depositary of the 1964 Conventions, so as toensure necessary co-ordination in this respect.

Article 100

(1) This Convention applies to the formation of a contract only when the proposalfor concluding the contract is made on or after the date when the Convention enters intoforce in respect of the Contracting States referred to in subparagraph (1)(a) or theContracting State referred to in subparagraph (1)(b) of article 1.

(2) This Convention applies only to contracts concluded on or after the date whenthe Convention enters into force in respect of the Contracting States referred to insubparagraph (1)(a) or the Contracting States referred to in subparagraph (1) (b) ofarticle 1.

Article 101

(1) A Contracting State may denounce this Convention, or Part II or Part III of theConvention, by a formal notification in writing addressed to the depositary.

(2) The denunciation takes effect on the first day of the month following theexpiration of twelve months after the notification is received by the depositary. Wherea longer period for the denunciation to take effect is specified in the notification, thedenunciation takes effect upon the expiration of such longer period after the notificationis received by the depositary.

DONE at Vienna, this eleventh day of April, one thousand nine hundred and eighty, ina single original, of which the Arabic, Chinese, English, French, Russian and Spanishtexts are equally authentic.

IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized bytheir respective Governments, have signed this Convention.

1988, c. 13, Sch.
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